Briefing notes on the death penalty and criminal justice
Paul Bacon 03/10/2011
Recent developments and quick facts
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Current Minister of Justice (MOJ) Hideo Hiraoka took office in early September. At his first news
conference he said that he had no plans to approve any executions of death-row inmates in the
foreseeable future.
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No condemned convicts have been executed in Japan for more than a year. Japanese prisons
currently have 120 inmates on death row.
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Since the last execution was carried out 13 months ago, 16 new death sentences have been handed
down by courts. Of these, eight cases involved rulings in which citizen jurors took part.
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MOJ Hiraoka said there was a growing movement worldwide to abolish the death penalty and that
he wants to study both sides of the issue more deeply. “The death penalty is always a last resort and
I must be extremely cautious about making a decision to approve an execution. For the time being, I
can’t see any executions going ahead.”
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There were, on average, 60 executions per year in the three decades from 1949 to 1979
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Between 1982 and 1989 there were 13 executions.
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Between 1993 and 2000 there were 39 executions.
Number of death sentences and executions per year, 2002-2010.
Year
2002
2003
2004
2005
2006
2007
2008
2009
2010
Sentences
3
2
14
11
21
23
10
17
14
Executions
2
1
2
1
4
9
15
7
2
Source: Tagusari, 2010.
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There were more executions in Japan in 2008 alone than there were in the decade between
1982-1993.
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The absolute number of executions in Japan is not high, but it is the bucking of a global abolitionist
trend by such a prominent OECD state which seems to raise most concern.
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However, note also that in South Korea a death penalty moratorium is under threat, and that in
Taiwan, a moratorium has recently ended.
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A working group on criminal justice issued inconclusive findings in March 2011 (see below).
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A working group on the death penalty continues to operate within the MOJ (see below).
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Factors affecting the overall number of executions and the recent increase
There are (at least) six important factors that impact execution numbers.
1.
The death penalty is broadly supported by the Japanese public, a fact to which Japan frequently refers
in response to international pressure. In 34 polls taken between 1953 and 1999, support for the death
penalty has never dropped below 50 percent. A Cabinet Office survey conducted in late 2009 shows
that a record 85.6 percent of Japanese favor maintaining the death penalty. Those who supported the
death penalty said victims and their families would remain frustrated (54%) and heinous crimes
would increase if the punishment was abolished (51.5%).
2.
The identity of the political party in government makes a difference. Prior to 2009, the Liberal
Democratic Party (LDP) had only been out of power for a brief 11 month period between 1993 and
1994. The number and rate of executions has significantly declined since the Democratic Party of
Japan (DPJ) came to power. Given the DPJ 2009 manifesto opposition to the death penalty, it is
reasonable to expect that execution numbers would remain very low as long as the DPJ remains in
power. Equally, were the LDP to win the next election (a very open question at present), it is to be
expected that executions would resume in earnest.
3.
The identity of the incumbent MOJ also makes a difference. Generally, LDP MOJs carry out
executions, while DPJ MOJs are extremely reluctant to do so. Two LDP MOJs in particular signed
off on many of the executions that account for the significant increase in recent years; Kunio
Hatayama, brother of the former Japanese Prime Minister Yukio, personally authorized thirteen
executions, and Eisuke Morii personally authorized nine. But there are exceptions. Seiken Sugiura,
an LDP MOJ in the mid-2000s, refused to authorize executions. Keiko Chiba, a recent DPJ MOJ,
eventually gave in to bureaucratic pressure to authorize two executions despite being a strong
abolitionist, whilst the last DPJ MOJ, Satsuki Eda, did not.
4.
The number of death sentences also increased significantly from 2004 onwards. This expansion in
the number of prisoners who were sentenced to death in turn accelerated the rate of executions. There
was a dramatic upsurge in the number of prisoners on death row, and the symbolic figure of 100 was
passed in February 2007. As the number of executions began to increase in response to this upsurge,
several death row prisoners responded by launching requests for retrial, in a bid to avoid execution. A
new trend emerged where inmates who had not filed any appeal were subject to more rapid
execution.
5.
A further reason for the rush to expedite executions at that time was the fact that moves were afoot to
revise the Japanese penal code to include life sentencing without the possibility of parole.
6. A sixth reason for the dramatic increase in the number of executions has been to manage the
(inaccurate) perception that heinous crime is on the increase; the government needed to do something
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symbolic to reassure the public. Timing is important here, and some commentators have referred to
the execution of the notorious child murderer Tsutomu Miyazaki, just nine days after Tomohiro Kato
went on the rampage in Akihabara in June 2008, killing seven people, as a good example of this. The
suggestion is that the execution of Miyazaki and two others so soon after the infamous Akihabara
incident was designed to send out a reassuring message to the Japanese people that ‘justice would be
done’, and that the full sentence would be carried out in Kato’s case. And Kato was indeed sentenced
to death, on Thursday March 24th, 2011, with many newspapers reporting that this massacre was seen
as representative of broader problems in Japanese society at that time.
Wrongful conviction and the death penalty
There have been 11 acknowledged cases of wrongful conviction in Japan, and lawyers believe there are
many more cases which have occurred and continue to occur. There is more information on each case at:
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http://forejustice.org/db/location/innocents_l.html
In just over five years during the 1980s, there were four cases in which retrials for people whose death
sentences had been confirmed ended in not-guilty decisions. (It should be noted that these wrongful
convictions took place in the 40s and 50s).
Sakai Menda
http://forejustice.org/db/location/Menda--Sakae.html
Shigeyoshi Taniguchi
http://forejustice.org/db/location/Shigeyoshi--Taniguchi.html
Yukio Saitoh
http://forejustice.org/db/location/Yukio--Saitoh.html
Masao Akabori
http://forejustice.org/db/location/Masao--Akabori.html
Toshikazu Sugaya
See also the case of the recently exonerated Toshikazu Sugaya. Sugaya was not sentenced to death, but
was sentenced to life imprisonment for murder, and the seriousness of the crime for which he was
wrongly convicted meant that he was a potential candidate for the death penalty:
http://forejustice.org/db/location/Sugaya--Toshikazu.html
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Working groups and strategy
Towards the end of his tenure, the previous MOJ Eda was being put under significant pressure to
authorize executions, but successfully resisted. It is easy for abolitionists to be pleased that Eda was
standing up to the bureaucrats and to public opinion. However, this raises interesting tensions regarding
constitutionalism and democracy. It can be argued that the death penalty is on the statute books, and as
such it is the duty of the MOJ to perform his task and to sign off on executions. It is arguably
unconstitutional and anti-democratic for an individual to let his or her private opinions impact upon his or
her legal obligations as a minister of state.
However, it could also be argued that the MOJ has been given special powers of discretion in this area for
good reason, because the issue is so important. Seen in this way, it can be argued that it is also the
responsibility of the MOJ to be aware of and respond to international trends with regard to this issue.
Eda was also tactically astute in his use of the death penalty working group established by former MOJ
Keiko Chiba. For some impatient abolitionists, it is frustrating that the working group is taking so much
time to report. In another important sense, however, the study group has bought time for Eda.
Eda’s stock response to bureaucratic pressure was that that it would be irresponsible of him to authorize
executions whilst an official working group is considering the issue of the death penalty. This is the
situation we presently find ourselves in with the new MOJ. At the time of writing, the death penalty
working group had not reported. This group was originally made up of conservative ministry insiders.
These insiders perhaps imagined that they themselves could tactically delay reporting, stall abolitionist
momentum, and only make modest recommendations for reform, as was the case with the working group
for criminal justice.
However, there is a growing realization that Eda himself used the continued existence of the working
group tactically as a stalling device. As a result, there are concerns that the death penalty group might
report back soon, and thereby prevent the new MOJ from continuing to use this stalling tactic. Perhaps in
response to this possibility, on September 13th new MOJ Hideo Hiraoka stressed the need for a national
debate on whether Japan should maintain the death penalty. Hiraoka stated that he “would like to consider
establishing an institution to take on national deliberations and proposals related to capital punishment”,
and that the establishment of a study panel in the Diet or in the Justice Ministry, open to public
participation, is among possible options. Hiraoka noted that while he is aware of his legal responsibility
for the imposition of capital punishment, another of his responsibilities is to clarify how to address the
question of the death penalty amid growing debate in Japan and the international community.
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Is there currently a ‘de facto moratorium’?
It could be argued that the present state of affairs constitutes a de facto moratorium. Since the DPJ came
to power, there was an 11-12 month period when there were no executions, and, since the two executions
in July 2010, we have now had no executions for 13 months.
There have been at least three other periods in Japan’s history when moratoria were effectively in place.
1.
Japan was arguably the world’s first abolitionist nation from 810 until 1156. This was rooted in two
social facts: the peace that Japan enjoyed during the Heian period, and the flourishing of Buddhism.
Although the death penalty was never formally abolished during this period, Japan was de facto
abolitionist. Executions resumed in 1156 following the violent Hogen rebellion in Kyoto. During the
next seven centuries of samurai rule, capital punishment was again a common sanction. Most crimes,
from petty larceny to murder, were punishable by death.
2.
According to the Council of Europe, between November 1989 and March 1993, “a de facto
moratorium on the death penalty was in place in Japan”, because the Ministers of Justice in office at
the time refused to sign execution orders. Executions resumed in March 1993 – despite a fall in the
crime rate (including the murder rate) during the period of the moratorium.
3.
Although we can generalize that the LDP is pro-death penalty, and the DPJ is opposed, there have
been exceptions According to the BBC, the Japanese media reported that Japan had a de facto
moratorium on executions for 15 months until 2006 because the then Justice Minister, Seiken
Sugiura, of the LDP, said that the death penalty went against his Buddhist beliefs.
Some personal thoughts and suggestions
1.
Consider the benefits of re-branding the current situation as a de facto moratorium.
Are there any strategic pay-offs in making this the default understanding of the present situation in Japan?
Abolitionists generally tend to frame the situation in Japan in negative terms – that because of public
opinion and bureaucratic intransigence, abolition, or a formal moratorium are both effectively impossible.
But it could be argued that branding the current situation as a de facto moratorium would reassure the
DPJ that their efforts in a difficult situation were being noticed. It could also raise the costs for the DPJ of
abandoning their current abolitionist stance and practice. It might also affect the thinking of any future
LDP government. If the current situation in Japan was represented as a moratorium, and abolitionists
offered a collective, high-profile declaration of delight at the Japanese moratorium, would this make it
more difficult for the LDP to resume executions? Perhaps this would be a valuable topic to discuss at first
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with the Human Rights Task Force, the EU, Nichibenren, and Japanese and international NGOs.
2.
Consider a shift in presentational emphasis towards treating the death penalty as a criminal
justice issue.
The problems with the Japanese criminal justice system are arguably at least as important as the death
penalty. Which issue should be the main focus, or, at least, how can the issues be related? The Concluding
Observations of the UN Human Rights Committee on Japan’s Fifth Periodic Report identifies numerous
problems with regard to due process in the Japanese criminal justice system. It addresses issues such as
the length of time suspects spend in custody, and issues relating to the recording of interviews and access
to legal counsel for suspects throughout the interview process.
These issues have received a great deal of attention in a number of recent high-profile cases in Japan.
There is broad support within Japan for the idea that there are serious problems with the integrity of the
criminal justice process. Due process issues are not as potentially politically costly to any incumbent
government, future government or potential future cross-party consensus. Movement on these issues,
although also not easy, is therefore less difficult than movement on the issue of abolition of the death
penalty itself. Perhaps it is easier to pursue death penalty issues under the cloak of pursuing broader
criminal justice issues.
A shift in relative focus towards criminal justice issues is consistent with British priorities, and both the
EU’s Guidelines on the Death Penalty, and the European Instrument for Democracy and Human Rights.
(It should also be pointed out that the EU guidelines and standards are drawn from the standards which
are established in the UN Human Rights Committee reports and conclusions).
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